TMI Blog2020 (2) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition with oblique motives and has not presented the correct facts just to gain undue advantage. Such type of practice should always be discouraged and is highly deprecated. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Thus, keeping in view the above said facts, the present writ petition is liable to be dismissed on the ground of concealment of facts in respect of the filing of the earlier writ petitions. In addition to the above said facts, the prayer as made by the petitioner in the present writ petition for issue of writ of mandamus to the opposite party no. 1 i.e The Commissioner Income Tax (Investigation), Lucknow, cannot be granted because for issue of writ of mandamus the first essential requirement is that the authority against whom wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anil Kumar And Virendra Kumar Srivastava JJ. For the Petitioner : Rajendra Kumar Dwivedi For the Respondent : Manish Misra ORDER Heard Shri R.K. Dwivedi, learned counsel for the petitioner and Shri Manish Misra, learned counsel for the respondent. The instant writ petition has been filed by the petitioner with the following main prayer:- (a) Issue an appropriate writ, order or direction in the nature of Mandamus thereby directing the opposite party no. 1 to forthwith take action on the complaint of the petitioner dated 07.09.2019 sent through speed post (annexed as Annexure No. 1 to the writ petition) and proceed in accordance with law. Shri Manish Misra, learned counsel for the respondent, raised a preliminary objection that the present writ petition is liable to be dismissed as on the same cause of action, the petitioner has already filed eight writ petitions before this Court. But the said facts have not been disclosed by the petitioner while filing this present petition. The said writ petitions are as under:- Type No. Year Petitioner Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statement at the Bar that inadvertently by mistake he has not mentioned all the relevant material facts in this writ petition, particularly with respect to the earlier writ petitions filed by the petitioner on the similar facts and circumstances. He may be permitted to withdraw this writ petition with liberty to pursue the pending writ petition. It is also stated that for the present cause of action he will not file any fresh petition. In view of above, the writ petition is dismissed as withdrawn with aforesaid liberty. (Emphasis supplied) (b) On 18.01.2020, this Court has passed an order in writ petition no. 1310 (M/B) of 2020, which reads as under :- Notice on behalf of opposite party no. 1 has been accepted by the Office of Assistant Solicitor General of India. For the order proposed to be passed, there is no need to issue notice to opposite parties no. 2 to 5. Mr. Shiv P. Shukla, learned Central Government Counsel is present on behalf of opposite party no. 1. Learned counsel for petitioner, Mr. Rajendra Kumar Dwivedi, at the very outset, made a statement at the Bar that inadvertently by mistake he has not mentioned all the relevant ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition has filed another writ petition bearing No. 33911 (M/B) of 2019 which is pending in this Court. The petitioner has not disclosed the earlier writ petition filed by him. It is submitted that in the given circumstances, the writ petition is not maintainable. It is to be noted that in the first round when the case was taken up we had passed over the case and directed the petitioner counsel to be present when the case is taken in the revise list and it will not be adjourned, however, no one is present on behalf of the petitioner to press this writ petition We have considered the submissions made by learned counsel for opposite parties no. 1 2 and gone through the record. We are satisfied that the grievance of the petitioner appears to be against Lucknow Development Authority as well as Uttar Pradesh Awas Evam Vikas Parishad who have not been impleaded in the writ petition. Moreover, the petitioner has not disclosed his credentials as well as the cause of action accrued to him to maintain the writ petition. In view of above, the writ petition, in the given circumstances, is not maintainable. It is accordingly dismissed. (Emphasis supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Dhan Prakash Budhraja, the petitions were to be filed at appropriate time and in view of the said facts, after getting instructions from Shri. Dhan Prakash Budhraja, the present writ petition and other writ petitions were filed before this Court. Shri Dhan Prakash Budhraja who appears in person did not dispute the fact that he has handed over the material to Shri Rajendra Kumar Diwedi, learned Advocate to prepare the writ petition and other writ petitions, however, he stated that as per the consultation and advice given by him the writ petitions were to be filed as and when time requires but without his knowledge and consent, the writ petitions have been filed by Shri Rajendra Kumar Diwedi, learned Advocate. Shri Rajendra Kumar Diwedi, learned Advocate submits that the statement made by Shri Dhan Prakash Budhraja is not correct and as per consultation with him the writ petitions were filed. In view of the above said facts, the prayer has been made only in respect to the disposal by the authority concerned who are impleaded as respondents in the various writ petitions. After hearing both the counsel and in view of the above facts, the position which emerges is that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise-guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. In Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. etc. AIR 1983 SC 1015, the Apex Court has held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. In K.D. Sharma v. Steel Authority of India Ltd. and Ors.,[2008 (12) SCC 481] the Apex Court has held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son, who has approached the Court, any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal . The same view was reiterated and followed in Vijay Syal another Vs. State of Punjab others (2003) 9 SCC 401 . Further, the action on the part of the petitioner thereby concealing the facts in respect of the earlier filing of the writ petitions on the same cause of action while filing the present writ petition also amounts to making misrepresentation or playing fraud upon the Court. So, in view of the above said facts, Hon'ble Apex Court in Andhra Pradesh State Financial Corporation Vs. M/S GAR Re-Rolling Mills Anr,., AIR 1994 SC 2151; and State of Maharashtra Ors. Vs. Prabhu, (1994) 2 SCC 481, has observed that a writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er writ petitions. In addition to the above said facts, the prayer as made by the petitioner in the present writ petition for issue of writ of mandamus to the opposite party no. 1 i.e The Commissioner Income Tax (Investigation), Lucknow, cannot be granted because for issue of writ of mandamus the first essential requirement is that the authority against whom writ of mandamus is sought, has got the legal duty, to issue writ of mandamus and further the person/petitioner who has sought for writ of mandamus should have approached the authority concerned after making request, the petitioner/person who made request should have approached the said authority to pay heed in regard to the request which was made by him and if the said authority is to act upon only the cause of action on the part of person who approached for issue of writ of mandamus under Article 226 of Constitution of India. Mandamus is a Latin word. Literally, it means a command or an order which directs a person or authority to whom it is addressed to perform the public duty imposed on him or on it. Mandamus is English origin. The direction in the Magna Carta that the Crown was bound neither to deny ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he performance of a particular duty which results from the official station of the one to whom it is directed or from operation of law. Thus it is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the constitution or by any other law (See State of Mysore v. K. N. Chandrasekhara, AIR 1965 SC 532 ) and it is a judicial remedy which is in the form of an order from a superior court (the Supreme Court or a High Court) to any government, court, corporation or the public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty. While mandamus may require performance of duty, it is command is never to act in a particular manner. Mandamus cannot be used to substitute a judgment or direction of the court for that of the authority against whom it is issued. The primary object of mandamus is to supply defect of justice. It seeks to protect rights of a citizen by requiring enforcement and fulfilment of imperative duty created by law. It thus promotes ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enforced. If he is not directly or substantially affected, he cannot maintain a petition of mandamus. (See Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41 ). The second requirement for a writ of mandamus is that the opposite party must have a legal duty to be performed. A legal duty must have been imposed on the authority by the constitution, a statute or by common law and the performance of that duty should be imperative, not discretionary or optional. There must be in the applicant a right to compel the performance of some duty cast on the opponent. (See State of MP. v. G. C. Mandawar, AIR 1954 SC 493 ). For the foregoing reasons, we hereby dismiss the writ petition with a cost of ₹ 50,000/- which should be deposited by the petitioner Shri Dhan Prakash Budhraja within a period of four weeks from today before the Senior Registrar of this Court and the amount so deposited shall be sent to the Legal Service Authority of the State of U.P. If the petitioner Shri Dhan Prakash Budhraja fails to deposit the aforesaid amount within the specified period the Senior Registrar of this Court shall take appropriate action against him as per law. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
